The Eqaulity Act is designed to help simplify previous legislation and to deliver a more accessible framework to employers so they can help protect their employees from discrimination and unfair treatment.
Dual discrimination – a simpler and more effective approach?
Currently a tribunal must consider each ground of discrimination separately (e.g. sex and race) and cannot, for example, determine that an individual is being discriminated against on the combined ground of being a "Pakistani woman". The impact on women as a group and on her ethnic group generally must be considered separately.
The new rules will permit dual discrimination claims but only on the grounds of two protected characteristics. It is arguable that a claim based on dual characteristics actually increases the claimant's prospects of a successful claim, in comparison with those under the current single strand discrimination laws.
As an employer will I be forced to carry out positive discrimination?
The Act will allow employers to take proportionate measures, not merely to train or encourage under-represented groups to apply for jobs, but also to overcome a perceived disadvantage or to meet specific needs based on protected characteristics.
This enables employers to take a wider range of steps in relation to any protected characteristic e.g. sex or race. Any steps taken under this provision are on an entirely voluntary basis and an employer must be able to show that steps taken are proportionate.
Employers will need to exercise caution in recruitment as any positive discrimination could result in claims from unsuccessful applicants. This may lead to an argument that they are more qualified than the successful applicant and the employer therefore had no right positively to discriminate.
In addition, because employers can only positively discriminate where there is no policy of doing this, (the rationale being to discourage positive discrimination simply in order to satisfy quotas), the use of this right by employers is likely to be limited.
Are employers going to be banned from carrying out health checks before a prospective employee commences employment?
Employers are currently permitted to ask any questions of prospective employees, provided that this does not constitute discrimination and are for a valid purpose.
Employers will still be permitted to ask pre-employment health questions but only where the employer has already offered the role to the employee as a conditional offer e.g. subject to satisfactory health checks. The only other condition is that if the employer needs to find out if the applicant can “carry out a function that is intrinsic to the work concerned.”
Pay secrecy clauses
So, can I still include pay secrecy clauses in contracts?
Currently employers can include pay secrecy clauses in their contracts to prohibit employees from discussing their pay. Under the changes to the Act, pay secrecy clauses will be unenforceable against employees who discuss pay for the purposes of ascertaining whether there is a connection between their pay and the fact that they have (or do not have) a protected characteristic. For example, a woman will be able to ask a man about his pay for the purposes of assessing whether her pay is discriminatory. This will mean that pay secrecy clauses will remain enforceable, for example, where two men discuss their pay provided there are no other discrimination issues.
However, it is likely that many employers will continue to include pay secrecy clauses in contracts as a deterrent to discourage employees from discussing their salaries.
Will employers be forced to publish pay details?
As it currently stands, there is no requirement on an employer to disclose to the public the amount its staff are paid. The Act creates an obligation on employers with 250 or more employees to publish information about the differences in pay between male and female employees.
Will tribunals force managers to attend equal opportunities training?
The Act will enable tribunals to make wider recommendations which benefit the entire workforce. For example, introducing an equal opportunities policy or by ensuring a harassment policy is more effectively implemented.
Both under the current law and with the proposed changes, an employer will not face any enforcement action for refusing to comply. There is, however, a benefit to the employer in implementing a recommendation because failure to do so could be used as evidence to indicate discrimination in subsequent claims.
I’m a carer for my young daughter. How will The Act help me?
As a result of landmark case law, carers have the right not to be discriminated against on the grounds of being associated with someone who is disabled. This right will be placed in the Act through the prohibition on associative discrimination on protected grounds generally.
Will all forms of discrimination be equally prohibited?
Under the Act, all forms of direct discrimination based on association with someone who has a protected characteristic, and perception related to a protected characteristic, will be prohibited.
There will continue, however, to be some discrepancies between different forms of discrimination because, for example, civil partnerships are excluded from this provision.
Isn't the Act solely a piece of employment legislation?
Actually, there are a number of provisions in the Act which are not employment related. In particular, owners and occupiers of property need to be aware of their duties not to discriminate against disabled people.
If there are any physical features which make it substantially more difficult for a disabled person to access premises, such as stairs, a reasonable alternative method of providing the services needs to be considered. If none can be found, those features need to be replaced.
Landlords, and those who manage properties on their behalf, are under a duty to make changes if it is difficult for a disabled tenant to use their premises. While they do not have to make physical adjustments to the same extent as service providers, this could entail minor alterations, such as changing taps and door handles to make them easier to use.
The Act consolidates these existing duties and further guidance is going to be published in due course.
Preparing for 2010
When will the Act be coming into force?
It has now been confirmed that the Coalition Government will bring the majority of the Act's provisions into force in October 2010. What has not been confirmed is whether those parts of the Act due to come into force in April 2011 (e.g. the dual discrimination provisions) will, in fact, be implemented next year as proposed.
Changes to the act may be minor for most employers, but human resource departments and line managers need to take note of the changes before they come into force in October. It could be costly for businesses to not make these slight alterations now, and face fines for not adhering in the future.